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	United Kingdom VAT & Duties Tribunals (Excise) Decisions
You are here: BAILII >> Databases >> United Kingdom VAT & Duties Tribunals Decisions >> United Kingdom VAT & Duties Tribunals (Excise) Decisions >> Lewis v Customs & Excise [2003] UKVAT(Excise) E00486 (28 August 2003) URL: http://www.bailii.org/uk/cases/UKVAT/Excise/2003/E00486.html Cite as: [2003] UKVAT(Excise) E00486, [2003] UKVAT(Excise) E486

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EXCISE DUTIES – Importation of 30 kilograms of hand rolling tobacco together with cigarettes, spirits and other goods – Forfeiture of vehicle and goods – Whether review decision not to restore vehicle and goods was reasonable – Appeal dismissed

MANCHESTER TRIBUNAL CENTRE

DAVID LEWIS Appellant

- and -

THE COMMISSIONERS OF CUSTOMS AND EXCISE Respondents

Tribunal: MR I E VELLINS (Chairman)

MRS G PRATT

Sitting in public in Manchester on 5 August 2003

The Appellant appeared in person

Mrs L Walmisley of Counsel instructed by the Solicitor for the Customs and Excise for the Respondents

© CROWN COPYRIGHT 2003


 


DECISION

1. This is an appeal by Mr David Lewis, the Appellant, against the decision of the Commissioners confirming a refusal to restore to the Appellant a seized vehicle K106 YVT, a white Astra, together with 30 kilograms of hand rolling tobacco, 3,000 cigarettes, 28.3 litres of spirits, 52.25 litres of wine and 30 litres of beer which had been seized by the Commissioners on 13 July 2002 when the Appellant had been stopped in the UK Control Zone at Coquelles, France when returning to the United Kingdom. In a letter dated 14 July 2002 the Appellant had requested the restoration of his excise goods and vehicle. On 30 July 2002 the Commissioners refused to restore the goods and vehicle to the Appellant. On 12 August 2002 the Appellant requested a review of that decision. By a letter dated 26 September 2002 the Commissioners decided to uphold the decision not to restore the excise goods and vehicle.
2. At the hearing of this appeal at Manchester on 5 August 2003 the Appellant represented himself. The Commissioners were represented by Mrs L Walmisley, Counsel.

Background

3. The background to the appeal is as follows. At about 12.10 pm on 13 July 2002 the Appellant had been stopped in the UK Control Zone at Coquelles, France travelling in a white Astra vehicle registration number K106 YVT with his wife Karen Rosalind Lewis. An officer of the Commissioners Mr C Champion questioned the Appellant and his wife. Mr Lewis told the officer that he had been away for four and a half hours and had been to Calais and Eastenders. The officer asked him if he had been anywhere else. Mr Lewis replied "what do you mean?". The officer asked him if he had been to any other countries. Mr Lewis replied that they had been to Ostend and nowhere else and that the purpose of the trip was for shopping. Mr Lewis said that it was his own vehicle which he had owned for twelve years. The officer asked him what he had bought that day to which Mr Lewis replied "some bottles of spirit and some cigarettes". The officer asked Mr Lewis "have you bought any tobacco?", to which Mr Lewis replied "yes we have some tobacco as well". He said that the quantity that he had bought was 3,000 cigarettes and four boxes of tobacco. He said that he had last made a cross channel trip two weeks previously with his sister. Mrs Lewis said that she had last made a cross channel trip in March 2002. The vehicle was searched and found to contain the various excise goods together with a Euro tunnel booking in the name of a Mr A Crosbie and seven pieces of paper from the internet giving directions and timetables relating to Eastenders. Mr and Mrs Lewis signed the officers notebook as a true and accurate account and agreed to stay for further questions. In answer to further questions from the officer Mr Lewis stated that the goods belonged to himself and his wife and handed over two receipts, one for the liquor and the other for the tobacco. He told the officer that he was a heavy goods vehicle driver earning a net wage of £32,000 per annum with overtime after tax, and detailed his outgoings. The officer put to him that he had only declared four boxes of 120 pouches of tobacco but the Appellant had actually five boxes of 120 pouches in the vehicle. The Appellant answered that that was a mistake on his behalf. He said that he had last travelled to France a couple of weeks previously and on that occasion had brought some beer and spirits from Eastenders but no tobacco and cigarettes. On that occasion he had travelled with his sister who had not bought tobacco and cigarettes from the Continent but tobacco and cigarettes from the Duty Free on the English side. On that trip he had bought only 200 cigarettes on the way over. He said "only 200. I was unaware of the cheaper price of tobacco in Ostend". He said that he had last travelled before that to France two and a half months beforehand when he went round and about shopping buying some beer and groceries. On that occasion he had not gone to Belgium. On that trip he had travelled with his friends Tony and Sue. The officer asked Mr Lewis "Tony and Sue who?". Mr Lewis replied "the chap whose name you read out before". The officer asked what was his surname. Mr Lewis replied "pass, you read it out. We met them on a cruise. I just know him as Tony". The officer showed Mr Lewis the booking form found in his car which was in the name of a Mr A Crosbie and asked Mr Lewis if his friend Tony was Mr A Crosbie. Mr Lewis agreed. The officer asked Mr Lewis if that was the trip that Mr Lewis was telling about namely on 5 April 2002. Mr Lewis replied that he was not sure and that he had not made any other trips with Mr Crosbie just having made the one trip. He did not know why the booking form was in his car. Mr Lewis said that he had made the three trips in 2002. Mr Lewis said that he smoked 50 to 60 a day and that he smoked cigarettes, and tobacco when things were tight. He said that the goods in his vehicle were for himself, his wife, two sons and a daughter. He said that he had not received any money towards the goods. He was just going to give them to his family, whatever they wanted. The arrangement was that if his family wanted to smoke the goods, they would be there at his house. He said that his sons lived with him but that his daughter lived with a boyfriend. They helped themselves when required. He said that they would all have a pouch of tobacco and two packs of cigarettes a day.
4. The officer asked Mr Lewis when he had last brought tobacco in France or Belgium. He said that the only time was when he had travelled with Mr Crosbie and bought 200 cigarettes at Euro City. He said that he had not bought hand rolling tobacco before 13 July. The officer asked Mr Lewis what then had his family been helping themselves to. Mr Lewis replied that when there'd come back from the Caribbean they had had a lot of cigarettes about 8,000 cigarettes in March but no tobacco. He said that the goods on 13 July 2002 would last about twelve months. He denied being a revenue trader. He had last bought cigarettes in the United Kingdom the previous day for £4 and had last bought tobacco a couple of weeks previously spending £4.25 for 25 grammes. He said that that tobacco would have lasted him for four or five days. He said that he rolled 22 to a pouch. He said that tobacco and cigarettes were cheaper in France and Belgium compared to the United Kingdom because of the excise duty and that it was common knowledge that it was cheaper abroad. Mr Lewis signed the officer's notebooks agreeing that the notes were true and accurate.
5. Mrs Karen Lewis was interviewed by another officer of the Commissioners. She told the officer that she had last travelled abroad in February 2002 and March 2002. In February she had been to the Caribbean and in March 2002 she had travelled with Mr and Mrs Crosbie when she had only bought a few items from Tescos. When shown the Euro travel invoice dated 5 April 2002 which had been found in the vehicle she indicated that that must have been the date when she had travelled with Mr and Mrs Crosbie and not in March 2002. She said that the trip on 13 July 2002 was the third trip she had made in the last twelve months. She said that she had brought back 1,000 cigarettes on the Caribbean trip but nothing in April 2002. She said that she thought that she consumed one to one and a half pouches of hand rolling tobacco a week and thought that 600 pouches or 30 kilograms of hand rolling tobacco would last for five to six months.
6. Mrs Lewis told the officer that the goods in the vehicle were split down the middle, that the goods were for themselves, and that the goods were purchased in Ostend in Cite Europe and Eastenders. She said that she had spent about £500 and no one had assisted in the purchase of the goods. They were going to smoke them and drink them. The goods were available for her children to help themselves. The rolling tobacco was kept in a drawer. She said that she smoked 40 to 60 cigarettes a day and that she did not roll her own cigarettes but that someone else did it for her. She had smoked hand rolled tobacco for three years. She worked earning £1,000 per month and gave details of her outgoings. She had financed the purchase of the goods on her credit card and had £3,000 savings.
7. The officers seized the vehicle and goods giving as the reasons for seizure that the goods had not been declared, the large quantity of excise goods, inconsistencies at the interview, the inconsistencies relating to the stated consumption of cigarettes and tobacco and the time it would take to smoke the goods, and the previous opportunity to purchase. It was calculated that the value of the excise goods was £1,632.75 with a loss to the revenue of duty of £3,602.64. The vehicle was described as a K registered vehicle in poor condition.
8. Mr Lewis wrote to the Commissioners on 14 July 2002 requesting the restoration of his goods. He stated that he had paid the duty on the goods in the European Union and was under the impression that he was allowed to bring back as much as he wanted as long as it was for own personal use. He stated that the goods were for own personal use. He complained that travellers were not given the correct information before leaving the United Kingdom. He submitted that he had been naïve. He submitted that he would have paid the extra duty if he had been asked to pay rather than loose his car which he needed to travel to work each day travelling 52 miles. He stated that he was an ex soldier and was of good character.
9. A Review Officer of the Commissioners Mr McEntee replied to Mr and Mrs Lewis on 30 July 2002 confirming that the goods and vehicle were not offered for restoration. He pointed out that the vehicle was used for the carriage of excise goods substantially in excess of the guidelines namely 14 times more than the guidelines for tobacco for two travellers, pointing out that amounts such as that were likely to damage legitimate trade. He pointed out that Mr and Mrs Lewis both had previous opportunities to purchase excise goods on their previous trips only recently before the incident. He pointed out that Mr Lewis had stated that Mr Lewis rolled 22 cigarettes from a pouch of tobacco but an average of 80 to 100 cigarettes was in fact obtained from a pouch of tobacco. The officer believed that the amounts of cigarettes rolled per pouch and quantities of cigarettes and tobacco given away to the family were questionable. He considered that the interviews were inconsistent relating to travel details and the trip with Mr Crosbie. The officer could find no evidence of exceptional circumstances which would justify departure from the normal policy.
10. On 12 August 2002 Mr and Mrs Lewis wrote to the Commissioners setting out various points. Mr Lewis stated that he denied that he could have previously purchased quantities of tobacco and alcohol because the tax difference on tobacco in France from the United Kingdom would not have made this worthwhile because there would not be a great saving. He stated that his previous journeys were genuine shopping trips and that they were unaware that they could purchase tobacco and cigarettes at a reduced duty rate in Belgium. He stated that 13 July 2002 was the first time he had visited Belgium. He stated that he was not avoiding any duty, and had receipts and was not intending to resell the goods. He denied being a smuggler and denied trying to hide anything from the officers. He stated that they had the money and had decided to purchase the tobacco and cigarettes as a "one off" and to make a saving for themselves. He confirmed that he rolled 20 cigarettes out of a pouch of tobacco containing 25 grammes. He asked for a reconsideration of the decision.
11. On 26 September 2002 the officer Mr McEntee conducted a review, and in a nine page letter confirmed the original decisions not to restore the excise goods and vehicle. In that letter the officer referred to the officers notes of the interviews with Mr and Mrs Lewis, and what was found in the vehicle, and referred to Mr and Mrs Lewis' letters to the Commissioners and the applicable legislation and policy. Mr McEntee pointed out that initially Mr Lewis had only told the officer that he had some bottles of spirit and some cigarettes. It was only after the officer had ask him specifically whether he had any tobacco that the officer was told that Mr Lewis had some tobacco as well. When asked about how much tobacco he had bought he had replied that there were four boxes of tobacco between the two of them but when the car was examined a further box was discovered. Mr Lewis had said that he had made a mistake in not mentioning all the tobacco. The officer however found it difficult to accept that he could have forgotten about a 6 kilo box of tobacco costing £261 when he had purchased this just a couple of hours earlier. The officer pointed to inconsistencies relating to previous trips. The officer noted from commercial information available to him that Mr Lewis' vehicle had made a short channel crossing on 20 April 2002 which neither Mr or Mrs Lewis had mentioned to the initial officer. The officer pointed out that at his interview Mr Lewis had said to an officer that Mr Lewis was unaware that the tobacco was cheaper in Belgium previously but he had also told the officer at the end of the interview that it was common knowledge that tobacco and cigarettes were cheaper abroad. He had also had an internet printing in his possession dated 26 March 2002 relating to Eastenders giving the prices of cigarettes and tobacco at cheap prices. The officer found it inconceivable that someone who found it necessary to spend over £1,600 on tobacco products on this trip only bought just over 200 cigarettes on previous trips when there was information from Eastenders website dating back to March 2002 in the car. They had stated that their children helped themselves to hand rolling tobacco left in the house but the officer queried how this could be if they had not bought tobacco on previous trips. The officer calculated that on Mr and Mrs Lewis' stated consumption of tobacco with a joint consumption rate of 3.25 pouches a week, the 30 kilos would have lasted them 184 weeks or just over three and a half years. Mr Lewis tried to convince the officer that his two sons plus his daughter each helped themselves to a ridiculous quantity of a pouch of tobacco and two packets of cigarettes every day. The officer found that the excessive amount of tobacco imported was far in excess of what would normally be required by two people with their consumption rates and he did not accept that they would have spent so much money on goods just to give it away to children without receiving any financial recommence. The officer was not satisfied that the goods were all for their own use and that they were not going to be sold to others. The officer refused that restoration as he was of the view that Mr Lewis had misled the intercepting officer about the quantity of tobacco being imported and because he considered that the goods were being imported for a commercial purpose. He also mentioned that Mr Lewis had told the officer that Mr Lewis had imported 8,000 cigarettes when he came back from the Caribbean in March and Mrs Lewis said that she'd brought back a 1,000 cigarettes, whereas where as the statutory allowance outside the European Union was just 200 cigarettes per person.
12. Mr Lewis appealed on 8 October 2002 stating as the grounds of his appeal that the goods were purchased and duty was paid.

Evidence at the hearing

13. Mr David Lewis gave evidence at the hearing of this appeal that he had served in the HM Forces and considered that the interview by the officers of the Commissioners should have been taped and not have been merely handwritten. He claimed that there had been some misunderstandings at his interview. He claimed that he had told the officer that when he had gone to the Caribbean he had bought 1,000 cigarettes but felt that the officer had not heard this correctly and had written 8,000. He denied that his wife had said at the interview that she had crossed the channel on three occasions but had told the officer that she had been outside the United Kingdom on three occasions, once with Mr and Mrs Crosbie, the trip to the Caribbean, and the trip to France with him. He stated that although he had signed the officers notebook he had not read the whole statement word for word. He claimed that the Reviewing Officer had made a judgment about him from handwritten evidence. He said that he and his wife were honest and trustworthy people who had made an mistake and that he had offered to pay the duty on the goods which were all for family use. He denied he was a smuggler. He claimed that the incident had soured his relationship with Mr and Mrs Crosbie. He said that he did not intend to avoid paying duty. He denied trying to hide a box of tobacco. He said that he had just answered the officer's questions in general terms and had not attempted to mislead the officer. Mr Lewis said that he and his wife smoked both cigarettes and tobacco but that he smoked more cigarettes than tobacco as did his wife. He said that he had bought more tobacco than cigarettes in Belgium because he could get cheaper cigarettes by hand rolling the tobacco. Mr Lewis said that he smoked 55 to 60 cigarettes a day and that he could get 22 cigarettes from a 25 gramme pouch, which meant that he used two to two and a half pouches a day. He could not explain the calculation that he had made to the officer that a 25 gramme pouch of tobacco would last him four to five days. He said that Mr Crosbie lived in Stroud in Kent and that Mr and Mrs Lewis had met Mr and Mrs Crosbie on the Caribbean cruise where they had become good friends. Mr and Mrs Lewis had stayed with Mr and Mrs Crosbie at their home. He said he did not know if Mr Crosbie smoked or whether Mrs Crosbie smoked.
14. Mr Frederick McEntee, the Review Officer gave evidence at the hearing confirming his decision and the documentation. Mr Lewis complained to him that the officer could have telephoned the local police to confirm that Mr Lewis was of good character. Mr McEntee confirmed that this was not the normal practice of the Commissioners.

Submissions of Respondents Representative

15. Counsel for the Respondents submitted that the Appellant had not been a creditable witness and that his attempted explanation for the inconsistencies had not been believable. She pointed out that the goods were greatly in excess of the guidelines, that the number of boxes of tobacco declared and the number found were inconsistent and it was unlikely that a box costing £261 would have been forgotten as it was purchased a short time previously. From commercial information available the Appellant had failed to declare a cross channel crossing on 20 April 2002. He had declared that he was aware that goods were cheaper across the channel but he had stated that he had not known that they were cheap in Belgium. However the Appellant had in his vehicle an internet printout showing cheap prices. Furthermore it was unlikely that so much tobacco would have been imported on this occasion and none previously and that his explanation that his family were able to help themselves to tobacco in his house was inconsistent with his statement that no tobacco had previously been imported. She submitted that the decision of the Commissioners was reasonable and that they had not made an error in law. She submitted that the officers notebook and notes were accurate and had been signed as true and accurate by both Mr and Mrs Lewis. Mr Lewis was an experienced ex-member of HM Forces and would not have signed the interview notes if they had not been accurate. She submitted that the officer reasonably concluded that the 30 kilograms of tobacco was being imported for commercial purposes rather than for personal use. That amount of goods would have lasted some two and a half years for an individual.

Submissions by Appellant

16. The Appellant submitted at the hearing that his appeal should be allowed. He denied that he had intended to mislead the officer when stopped. He said that he had made some simple mistakes. He denied that he was importing the goods for commercial purposes. He submitted that he thought that he could bring these quantities for himself and his family for their own use and was not endeavouring to evade duty. He denied being a frequent traveller. He submitted that the tobacco was to be split between five people and therefore would not have lasted for two and a half years. He had paid the duty in Belgium and thought that that was all he needed to pay.

The relevant law

17. Alcoholic drinks, cigarettes and tobacco are chargeable with excise duty upon importation into the United Kingdom under the Alcoholic Liquor Duties Act 1979 and Tobacco Products Duty Act 1979 section 2.
18. By regulation 4(1) of the Excise Goods (Holding, Movement, Warehousing and REDS) Regulations 1992 SI 3135 the excise duty point at which excise duty is payable generally arises at importation.
19. Under article 10(2) of the Excise Goods (Holding, Movement, Warehousing and REDS) Regulations 1992, except where the Commissioners otherwise allow, imported community excise which are subject to a duty of excise that has not been paid and which it could not consigned to a tax warehouse shall upon their importation be consigned to a REDS.
20. Article 8 of the European Union Council Directive 92/12/EEC states that:

"As regard products acquired by private individuals for their own use and transported by them, the principle governing the internal market lays down that excise duty shall be charged in the Member State in which they are acquired".

21. Article 9 of the Council Directive states as follows:

"9.1 Without prejudice to article 8 excise duty shall become chargeable where products released for consumption in a Member State are held for a commercial purpose in another Member State".

In this case the duty shall be due in the Member State in whose duty the products are and shall become chargeable to the holder of the products.

22. Article 9.2 of the EC Directive provides as follows:

"9.2 To establish that the products referred to in Article 8 are intended for commercial purposes, Member States may take into account inter alia the following:

the commercial status of the holder of the products and his reasons for holding them

the place where the products are located or where appropriate the mode of transport used

any document in relation to the products

the nature of the products

the quantity of the products

Member States may lay down guide levels solely as a form of evidence. These guidelines may not be lower than [specified levels]".

23. The quantity of those goods specified in the United Kingdom was in connection with tobacco products 800 cigarettes, 400 cigarillos, 200 cigars and 1kg of tobacco products. The cigarettes and tobacco figures since the seizure have been increased under Amendment Regulations 2002 No. 2692.
24. Section 3 of the Excise Duty (Personal Relief's) Order 1992 states that:

"Subject to the provision of this Order a community traveller entering the United Kingdom shall be relieved from payment of any duty of excise on excise goods obtained for his own use in cross-border shopping of which he transported".

25. "Own use" is defined in the Order as:

"Own use includes use as a personal gift provided that that if the person making the gift receives in consequence any money or money's worth (including any reimbursement of expenses incurred in connection with obtaining the goods in question) its use shall not be regarded as own use for the purpose of this Order".

26. Section 5(3) of the Order establishes that paragraphs 3(a) and 3(c) applied to a person who has in his possession or control any excise goods afforded relief under this Order in excess of any of the quantities shown in the schedule to the Order.
27. Paragraph 3(a) states that the Commissioners may require a person to whom this paragraph applies to satisfy them that the excise goods afforded relief from this Order are not being held or used for a commercial purpose.
28. Paragraph 3(b) provides that where a person fails to satisfy the Commissioners that the excise goods in question are not being held or used for a commercial purpose the condition imposed shall be treated as not being complied with.
29. This schedule specified at the time in connection with tobacco products 800 cigarettes and 1kg of tobacco product as quantities about which a traveller may be required to satisfy the Commissioners in this way. The cigarettes figure has since been increased to 200 cigarettes, and the tobacco figure increased to 3kgs.
30. Paragraph 5(1) of the Order states that if this condition is not met "those goods shall without prejudice to article 6 be liable to forfeiture".
31. Paragraph 5(2) sets out various factors where regard should be taken in determining whether or not the condition in paragraph 5(1) is being complied with.
32. Section 141(1) of the Customs and Excise Management Act 1979 (CEMA) provides that:

"(a) any … vehicle … which has been used for the carriage … of the thing so liable to forfeiture, either at a time when it was so liable or for the purposes of the commission of the offence for which it later became so liable; and

(b) any other thing mixed, packed or found with a thing so liable shall also be liable to forfeiture".

33. Section 152 to the 1979 Act provides that:

"The commissioners may, as they see fit … (b) restore, subject to such condition (if any) as they think proper, any thing forfeited or seized under [CEMA]".

34. Section 49(1) of CEMA enables the commissioners to forfeit dutiable goods that had been imported or held without payment of duty.
35. The Court of Appeal in Hoverspeed appeal placed the burden of proof upon the Commissioners as to whether goods are being held or used for a commercial purpose.
36. Section 15 of the Finance Act 1994 empowers the Commissioners to confirm and vary or withdraw a reviewable decision on behalf of the Commissioners.
37. The basis of the Tribunal's jurisdiction is set out in section 16 of the Finance Act 1994, subsection (4) of which provides that:

"In relation to any decision as to an ancillary matter, or any decision on the review of such a decision, the powers of an appeal tribunal on an appeal under this section shall be confined to a power where the tribunal are satisfied that the commissioners or other persons making their decision could not reasonably have arrived at it".

38. In John Dee Ltd v Commissioners of Customs and Excise 1994 STC 941, Neill L.J. approved the principle that the tribunal could only properly review the commissioners' decision if it was shown that the commissioners had acted in a way in which no reasonable panel of commissioners could have acted, if they had taken into account some irrelevant matter, or had disregarded something to which they should have given weight, and stated that the tribunal may also have to consider whether the commissioners had erred on a point of law.
39. The jurisdiction of the Tribunal was further considered by the Court of Appeal in the case of Lindsay v Commissioners of Customs and Excise 2002 EWCA Civ 267. Lord Phillips stated at paragraph 40-

"The principle issue before the tribunal, was whether the commissioners' decision not to restore Mr Lindsay's car to him was one that they "could not have reasonably have arrived at" within the meaning of those words in section 16(4) of the 1994 Act. Since the coming into force of the Human Rights Act 1998, there can be no doubt that if the commissioners are to arrive reasonably at a decision, their decision must comply with the Convention for the Protection of Human Rights and Fundamental Freedoms 1950 (as set out in schedule 1 to the Human Rights Act 1998). Quite apart from this the commissioners will not arrive reasonably at a decision if they had taken into account irrelevant matters or fail to take into account all relevant matters – see Customs and Excise Commissioners v J H Corbitt (Numismatists ) Ltd 1980 STC 231 at 239, 1981 AC 22 at 60 per Lord Lane".

40. In the Lindsay case the Court of Appeal considered the then policy of the commissioners as explained in a witness statement relating to the commissioners' general policy of non-restoration. Lord Phillips considered the commissioners' policy at paragraphs 63-65 inclusive. He concluded as follows:

"63. I would not have been prepared to condemn the commissioners' policy had it been one that was applied to those who were using their cars for commercial smuggling, giving that phrase the meaning that it naturally bears of smuggling goods in order to sell them at a profit. Those who deliberately use their cars to further fraudulent commercial ventures in the knowledge that if they are caught their cars will be rendered liable to forfeiture cannot reasonably be heard to complain if they lose those vehicles. Nor does it seem to me that in such circumstances, the value of the car used need to be taken into consideration. Those circumstances will normally take the case beyond the threshold where that factor can carry significant weight in the balance. Cases of exceptional hardship must always of course be given due consideration.

The commissioners' policy does not however draw a distinction between the commercial smuggler and the driver importing goods for social distribution to family or friends in circumstances where there is no attempt to make a profit. Of course even in such a case the scale of importation, or other circumstances, may be such as to justify forfeiture of the car. But where the importation is not for the purpose of making a profit, I consider that the principle of proportionality requires that each case should be considered on its particular facts, which will include the scale of importation, whether it is a first offence, whether there was an attempt at concealment or dissimulation, the value of the vehicle and the degree of hardship that will be caused by forfeiture. There is open to the commissioners a wide range of lesser sanctions that will enable them to impose a sanction that is proportionate where forfeiture of the vehicle is not justified.

I do not think that it would be impractical to distinguish between the truly commercial smuggler and others. The current regulations shift the burden to the driver of showing that he does not hold the goods for commercial purposes when these exceed the quantity in the Schedule. In a case such as the present the driver importing for family or friends should be in a position to demonstrate that this is the case if called upon to do so (see the comments of Lord Woolf CJ in Goldsmith v Customs and Excise Commissioners 2001 1WLR 1673 at pages 1679-1680)".

41. The case of Hoverspeed (2) in the Court of Appeal 2002 EWCA Civ 2002 clarified that the burden of proof as to commerciality is on the commissioners and not on the appellant.
42. That case also decided that the seizure was not to be regarded as axiomatically invalid merely because it occurred as a result of a check which was invalid.
43. The case also decided that if an individual acquires products for a person other than his own use such products are to be regarded as held for commercial purposes.
44. In the Hoverspeed appeal in the High Court Case No 2002 EWHC 163L the Court stated at paragraph 187:

"We would however draw the same distinction as that which was drawn in the Lindsay case between the treatment of those who are found to be smuggling for profit and those who are directly or indirectly involved in not-for-profit smuggling. So far as the latter are concerned the remedy applied by the commissioners must be proportionate to the activity of which complaint is made".

45. The Court of Appeal in Gora v Commissioners of Customs and Excise Case No.2003 EWCA Civ 525 confirmed that it was not intended that the tribunal should have jurisdiction to reconsider the condemnation of goods as forfeited, although the tribunal has the capacity to determine the issue of reasonableness which includes proportionality, in the light of facts found.
46. The High Court in the case of Gascoyne v Customs and Excise Commissioners Case No. CH/2002/AWP/0743 has held that taken as a whole the condemnation and restoration rights are sufficient to comply with Convention Rights set out in article 6 of the ECHR.

Conclusions

47. We have considered all the evidence in this appeal and the provisions in the law involved. We make the following Findings of Fact and reach the following conclusions.
48. We find that on 13 July 2002 the Appellant and his wife were returning to the United Kingdom from a visit to Belgium travelling in the Appellant's Astra vehicle. They had purchased excise goods in Belgium. In their vehicle was contained 30 kilograms of tobacco, 3,000 cigarettes, 26.5 litres of spirits, 52.5 litres of wine and 30 litres of beer. Mr Lewis had owned the car for 12 years. We find that Mr Lewis deliberately misled the officer when he was asked by the officer what they had bought. Initially Mr Lewis only mentioned some bottles of spirit and some cigarettes, and it was only when he was further questioned by the officer that he admitted that they had some tobacco as well. When asked about the quantity of tobacco Mr Lewis stated 3,000 cigarettes and only four boxes of tobacco whereas in his vehicle was found five boxes of tobacco. We did not believe Mr Lewis' assertion that he had not purchased tobacco when he had travelled with Mr Crosbie on 5 April 2002. He had made reference to keeping tobacco at his house to which his children had access. He had not mentioned that his vehicle had made a short channel crossing on 20 April 2002. We did not believe his assertion that previously he had been unaware that tobacco was cheaper in Belgium. He had internet information in his vehicle relating to Eastenders in Belgium dating from a period prior to his trip, and he had accompanied Mr and Mrs Crosbie on their visit to the Continent of Europe on 5 April 2002. We did not believe Mr Lewis' contention that he could only obtain 20 to 22 rolled cigarettes from a pouch of tobacco. On his own admission he had imported excess cigarettes previously from the Caribbean We did not accept Mr Lewis' challenge to the notes taken by the interviewing officer. Mr Lewis had signed the officer's notes as accurate and true. He is a ex-soldier experienced in investigations and we find that he would hardly have signed the notes if he had not found them to be accurate. Mr Lewis' contention that the interviews should have been taped was not in accordance with the practice of the Commissioners, and we are satisfied that the officers notes were true and accurate. His contention that he did not know if Mr and Mrs Crosbie both smoked is not credible. We find that we are not satisfied with the explanation given by Mr Lewis for those matters set out in the review letter which led the officer reviewing the decision to conclude that the goods and vehicle should not be restored to the Appellant. We did not find the Appellant to be a credible witness. We find that the cigarettes and tobacco were not purchased for the own use of Mr and Mrs Lewis and their children. The quantity of tobacco purchased was a very large amount and was not consistent with the smoking habits of Mr and Mrs Lewis and their family.. We find that Mr and Mrs Lewis were bringing the tobacco into the United Kingdom for profit for resale and not for their own use. We find that the Commissioners have satisfied the burden of proof upon them.
49. We find that the cigarettes, tobacco and the vehicle were validly seized by the Commissioners as was the remainder of the goods. We further find that as the vehicle was used to transport tobacco for commercial purposes and not for own use it was reasonable for the Commissioners to refuse to restore the vehicle to the Appellant.
50. We find that the Commissioners acted proportionately in refusing to restore the vehicle and goods. We bear in mind the value of the goods of £1,632.75, the duty evaded thereon of some £3,602.64 and that the vehicle was a K registered vehicle owned by the Appellant for over 12 years. We find no exceptional circumstances relating to the Appellant. We find that the refusal to restore the goods and vehicle was proportionate.
51. We are satisfied that the Commissioners had proved that the goods were not for the own use of the Appellant and his family and that the goods were being held for commercial purposes from the quantity of goods and the misleading replies given by the Appellant to the officers. We are satisfied following the Hoverspeed decision in the Court of Appeal that the seizure of the goods and the vehicle was valid. We consider that there were no exceptional circumstances in the case of the Appellant which would justify the Commissioners restoring the goods and vehicle to him and that they have acted proportionately. We find that excise goods and vehicle were liable to seizure and forfeiture in accordance with the legislation and we find that the Commissioners decision not to restore the goods was in accordance with that legislation and was reasonable. We find that the decisions were reasonably arrived at. We find that the Commissioners have not acted in a way that the no reasonable panel of Commissioners could have acted and they have not taken into account irrelevant matters or disregarded it something to which they should have given it weight. We further find that they have made no error in law.
52. The appeal of the Appellant is dismissed. The Commissioners did not apply for costs and we make no order as to costs.

I E VELLINS

CHAIRMAN

RELEASED:

MAN/02/8239